Resiliency Rule Going to Court as Opposition Mounts

The SandPaper

By Gina G. Scala

New Jersey environmental officials remain silent while pushbacks against a controversial flood resiliency rule intensify, with four counties and two business organizations taking the fight to court alongside a legislative effort to repeal the measure.

“We commend the senate president for taking this bold and decisive step towards repealing the disastrous and ill-conceived ‘REAL Rule’ before it does significant harm to Jersey Shore residents and our economic future,” Ocean County Commissioners Frank Sadeghi, Robert S. Arace, Jennifer Bacchione, Sam Ellenbogen and Ray Gormley said last week in a joint statement.

Earlier this year, officials in Cape May, Cumberland, Monmouth and Ocean counties sued to stop the implementation of the New Jersey Protecting Against Climate Change – Resilient Environment and Landscapes, known as the REAL Rule. The measure was adopted Jan. 20, and on Feb. 24, Senate Concurrent Resolution 106 was introduced by Sen. Nicholas P. Scutari (D-22nd).

Joining Scutari in sponsoring the resolution is Sen. Michael Testa (R-1st). The co-sponsors are Sens. Carmen Amato (R-9th), John Burzichelli (D-3rd), James Holzapfel (R-10th), Vincent Polistina (R-2nd), Robert Singer (R-30th) and Holly Schepisi (R-39th).

The resolution criticizes the rule’s adoption process, claiming it lacked adequate economic, housing and job impact assessments. It emphasizes that the “impacts of rules and regulations of this magnitude should be carefully studied prior to implementation.”

“(The) DEP does not have any comment,” Larry Hajna, an agency spokesperson, said via a March 9 email. “As you may be aware, the rule is a matter of both pending litigation and legislation.”

The REAL coastal flood rules currently require all new construction, including buildings and roads, to be built 4 feet above the Federal Emergency Management Agency’s flood elevation. On Long Beach Island, that would translate to roadways being 13 feet above sea flood elevation. After Superstorm Sandy, former Gov. Chris Christie added a foot to the flood elevation set by FEMA.

It also applies to residences undergoing renovations that add 50% more than the home’s value, state business leaders said.

“As you are aware, the REAL rules represent an unprecedented and deeply consequential overhaul of development standards that will fundamentally reshape our legislative district and have sweeping consequences for the entire state,” stated a letter from 10th District Assemblyman Paul Kanitra and more than a dozen mayors from Ocean and Monmouth counties. “The extreme requirement that new and substantially improved structures be elevated 5 feet above current FEMA base flood elevation will significantly increase construction and redevelopment costs.”

Addressed to Acting DEP Commissioner Ed Potosnak, mayors from Bay Head, Brick, Brielle, Island Heights, Lavallette, Mantoloking, Manasquan, Point Pleasant, Point Pleasant Beach, Sea Girt, Seaside Heights, Seaside Park, South Toms River, Spring Lake, Spring Lake Heights and Toms River signed the letter. All of those communities are represented by 10th District legislators.

“Our Shore communities are the near direct target of these sweeping land-use changes, culminating in our urgency for action through legislature, which was ignored during the development and adoption of these rules,” the March 6 letter said. “Environmental protection and economic vitality are not mutually exclusive. We stand ready to work collaboratively on balanced, data-driven policies that protect our communities without undermining their future.”

Saying the rule burdens towns, residents and developers with added costs and regulatory hurdles, the New Jersey Business and Industry Association, in conjunction with the New Jersey Builders Association, announced their notice to appeal.

“Adding insult to injury, the Murphy administration left New Jersey on its very last day with a set of rules that will greatly increase the costs of housing in coastal and river communities, increase flood insurance costs, or require flood insurance in areas that have never flooded and may never flood,” said Ray Cantor, chief government affairs officer for the NJBA. “Property values will also be lowered in some cases – all while impacting the state’s affordable housing goals.”

The NJBIA and the New Jersey Builders Association said their joint suit in no way targets or reflects the new administration in Trenton and they support Gov. Mickie Sherrill’s agenda on regulatory reform and prioritizing affordable housing. “The last-minute Murphy-era rule goes directly against both missions.”

Ocean County commissioners agree, adding that Scutari’s assessment of the rule’s impact on property values while increasing regulatory costs and constitutional overreach is dead-on correct.

Still, Jeff Kolakowski, president and chief executive officer of the NJBA, said his group staunchly backs climate resilience and environmental protect.

“But those goals must be pursued in a way that is legally sound, economically responsible and compatible with New Jersey’s urgent need for housing,” he added.

The resolution moved from the Senate Energy and Environment Committee to its State Government, Wagering, Tourism and Historic Preservation Committee on March 2. It provides the NJDEP 30 days following receipt of the resolution to amend or withdraw the rules, or the Legislature has the constitutional authority, through a concurrent resolution, to nullify the regulations in full or in part, the resolution says.